Citation Nr: 21069843 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 03-16 504 DATE: November 19, 2021 ORDER A rating in excess of 50 percent for a psychiatric disorder, to include insomnia and depression, is denied. Prior to September 10, 2016, a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's psychiatric disorder manifested symptoms approximating no worse than occupational and social impairment with reduced reliability and productivity. 2. Prior to September 10, 2016, the Veteran was not precluded from securing or following substantially gainful employment; the Veteran worked full-time until September 9, 2016. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for a psychiatric disorder, to include insomnia and depression, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9434. 2. Prior to September 10, 2016, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1979 to November 1988. The case is on appeal from an October 2017 rating decision. In July 2015 and December 2020, the Veteran testified at Board hearings. Most recently, in a February 2021 decision, the Board denied service connection for cystitis and dismissed and earlier effective date issue as to the psychiatric disorder. At that time, the Board remanded the remaining claims for additional development. Additional evidence was submitted following the most recent August 2021 supplemental statement of the case (SSOC); however, none of the additional evidence is relevant to the issues adjudicated herein. Thus, there is no prejudice to the Veteran in proceeding with appellate review for the two matters on appeal. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, her representative and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. A rating in excess of 50 percent for a psychiatric disorder. Legal Criteria The Veteran's psychiatric disorder, to include insomnia and depression, has been evaluated under the General Rating Formula for Mental Disorders (General Formula). 38 C.F.R. § 4.130, DC 9434. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent evaluation is warranted for PTSD where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. The specified factors for each incremental psychiatric rating are not requirements for a particular rating but are examples providing guidance as to the type and degree of severity, or their effects on social and work situations. Analysis should not be limited to whether the symptoms listed in the rating scheme are exhibited; rather, consideration must be given to factors outside the rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Facts Following the July 2017 claim for an increased psychiatric rating, the Veteran was afforded a September 2017 VA examination to address the severity of the disorder. The examiner indicated the Veteran's psychiatric disorder causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The examiner stated the Veteran has symptoms of depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment and disturbances of motivation and mood. She noted the Veteran has no serious mental status abnormalities, demonstrated full range of affect, and suicidal and homicidal ideation were denied. She further stated the Veteran has no hallucinations and delusions, and her behavior is generally appropriate. The examiner indicated her thinking and thought content are appropriate, there are no signs of cognitive difficulty, her memory is intact, and her judgment and insight are normal. The Veteran's representative submitted a December 2020 brief which reported her psychiatric symptoms support an increased rating. Further, the Veteran was afforded a December 2020 Board hearing in which she testified that her psychiatric disorder has worsened, including due to sleep trouble, anxiety, depression and fatigue. The claim came before the Board in February 2021 and it remanded the claim for further development, including a VA psychiatric examination to assess the severity of the disorder. The Veteran was afforded a March 2021 VA examination in which the examiner indicated her psychiatric disability causes occupational and social impairment with reduced reliability and productivity. The examiner reported symptoms of depression, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a work-like setting. The examiner noted the Veteran denied suicidal or homicidal thoughts, hallucinations, and delusions, and found that her thoughts were logical and coherent. A March 2021 VA unemployability opinion indicated the Veteran has difficulty attending to or is easily distracted from the task at hand, she has difficulty maintaining concentration and focus on work over a period of time, and her sleep is so disrupted that she is usually fatigued at work, making concentration and focus on work assignments difficult. The March 2021 VA examiner provided an addendum opinion in May 2021 related to the Veteran's ability to work. She stated the Veteran has significant difficulty remembering instructions and details of work assignments, she is so depressed that she has difficulty sustaining energy and motivation to complete assignments at work and she has other mental health symptoms, including panic attacks, irritability and suspiciousness that interferes with her ability to work. The Board notes the Veteran's claim for a TDIU is addressed below. Analysis In consideration of the evidence, the Board finds the criteria for a rating in excess of 50 percent for a psychiatric disorder have not been met. The Board determines the lay and medical evidence of record, including the VA examination reports, support that the Veteran's psychiatric disability is appropriately rated as 50 percent disabling throughout the appeal period and an increased rating is not warranted. The VA examination reports from September 2017 and March 2021 were provided from psychologists whose opinions do not support that the Veteran's psychiatric condition approximated occupational and social impairment with deficiencies in most areas and an increased rating. The September 2017 examiner opined the Veteran's psychiatric disorder causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Moreover, the March 2021 examiner indicated her disorder causes occupational and social impairment with reduced reliability and productivity. These conclusions are indicative of a moderate psychiatric disability and do not support a condition that rises to the level of a 70 percent rating. The Board acknowledges the psychiatric symptoms found in the record, including difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a work-like setting. Additionally, the Veteran's psychiatric disorder has a significant impact on her ability to work. However, her psychiatric symptoms are consistent with the current 50 percent rating and symptomatology justifying a 70 percent rating has not been exhibited. Specifically, the Veteran's symptoms do not include suicidal or homicidal ideation, impaired impulse control, obsession rituals, impaired thought content or speech, neglect of personal appearance or an inability to establish and maintain effective relationships. The record shows the Veteran has been married for over 27 years, has several dogs, is close to her brother, and reports enjoying working in her yard and riding her bike. In sum, after conducting a holistic analysis, the Board finds that the preponderance of the evidence weighs against the claim for a rating in excess of 50 percent for a psychiatric disorder, to include insomnia and depression. There is no reasonable doubt to be resolved and an increased rating is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. Prior to September 10, 2016, a TDIU. Legal Criteria Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Analysis While the case was in remand status, in the August 2021 rating decision, the RO granted a TDIU, effective September 10, 2016. For the reasons noted below, the Board finds a TDIU is not warranted prior to September 10, 2016. (Continued on the next page) The Veteran submitted a September 2016 TDIU application which indicated she last worked full-time on September 9, 2016. She specifically reported that she worked for the U.S. Postal Service from 1995 to September 9, 2016. Further, the evidence of record, including the September 2017 VA psychiatric examination report, confirmed that the Veteran retired from the Postal Service in 2016. The Board notes the September 2016 TDIU application is the only such application of record and there is no report from the Veteran in the record that she stopped working full-time prior to September 9, 2016. Therefore, based on the September 2016 TDIU application, the preponderance of the evidence is against the claim and a TDIU prior to September 10, 2016 is not warranted. The Veteran worked full-time until September 9, 2016 and then retired. Accordingly, a TDIU prior to September 10, 2016, is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Isaacs, Brandon The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.